Mr. VanEngen, a member of the Protestant Reformed Church of Hull, Iowa, is a practicing attorney.
Several past articles under this Church and State rubric have addressed the subject of homosexuality and the trend in the law to protect the practice of the sin of homosexuality. This author’s home state of Iowa recently made national news when the Iowa Supreme Court ruled that homosexual “couples” could not be denied marriage licenses.¹ Believers would do well to pay close attention to the progression of the law in this regard. The trends that are being established today may very well have serious implications for our churches in the future. This article will address some of these developments, using the trends in Iowa as an example. We will look at the impact that court decisions or legislation on this issue may have on our churches and schools. Finally, we will look at how these same trends are progressing on the federal level.
The decision of the Iowa Supreme Court in Varnum v. Brien stunned many. Several courts and legislative bodies have made decisions that allow homosexual marriage, but these have tended to be in the more “liberal” jurisdictions. Only two other states allow homosexual marriage, and this was the first such action in a state in the heartland of the country.² The decision was also noteworthy in that it was unanimous.
The case involved a lawsuit by six gay or lesbian couples who were denied marriage licenses. While heterosexual couples were permitted to marry, the county recorder’s office denied marriage licenses for the homosexual couples, in part because the Iowa Legislature had passed a law providing that only marriage between a male and a female is valid.³ The six couples brought suit against the recorder claiming they were denied Equal Protection of the law in violation of the Iowa Constitution. They also claimed they were denied the fundamental right to marry, as well as rights of privacy and familial association. Twenty-five different groups filed amicus, or “friend of the court,” briefs on either side of the issue. These amicus briefs were from local and national organizations that were not parties to the action, but that sought to help sway the court’s decision one way or the other.
The county argued that there were five basic reasons for limiting marriage to heterosexual partners: promoting procreation, promoting child rearing by a father and a mother within a marriage, promoting stability in an opposite sex relationship to raise and nurture children, conservation of state resources, and promoting the concept and integrity of traditional notion of marriage. The court reasoned that limiting marriage licenses to those of opposite sex created classifications of couples who were treated differently. This raises questions of constitutionality. It would be impossible in the limited space of this article adequately to explain the law in this regard, but a very rough summary is as follows. When laws or government actions creating classifications are examined under Constitutional analysis, there are three standards that can apply. Under the usual standard, great deference is given to the legislature, and a law will stand as long as there is a plausible policy reason for the classification. On the other extreme, certain types of “suspect” classifications, such as those based on race, are subject to strict scrutiny, and are presumed invalid unless it is shown the law is narrowly tailored and serves a compelling government interest. An intermediate standard also applies to certain “quasi-suspect” classifications. Under this standard, a law or action will be upheld if the government can show it furthers an important government interest and is substantially related to that interest.
The Court then needed to decide whether homosexuals were a classification entitled to heightened scrutiny. The court looked at a number of factors to be considered in determining whether greater protection was warranted, including: whether there was a history of discrimination against homosexuals, whether homosexuality was a characteristic beyond their control, and whether they were relatively politically powerless. The court found that homosexuals were a class entitled to heightened scrutiny, but did not decide whether homosexuals were entitled to protection under the higher strict scrutiny standard. In the court’s analysis this was unnecessary because the restriction on homosexual marriage could not even meet the intermediate standard. However, even the designation as at least a “quasi-suspect” class is important because it lays the groundwork for special protection against discrimination, as in other civil rights laws such as those protecting minority races.
The court in Varnum ruled that the reasons the county had articulated for denying marriage to homosexuals were not substantially related to important government interests, as required by the intermediate standard. The Court ruled that the state statute limiting marriage to male and female, and therefore the refusal to issue a marriage license to homosexual couples, was invalid as a violation of the Equal Protection clause of the Iowa Constitution, which is similar to the Equal Protection Clause of the United States Constitution. The Court also addressed one reason for denial of marriage to homosexuals that the county did not raise—religious beliefs. The court opined, and correctly so, that religious convictions lay behind the desire to prohibit homosexual marriage. However, as the court stated, the establishment of one religion’s tenets over another’s also violates the Constitution.
This case is instructive with regard to the direction of the law on this and similar moral issues. This is true not only for the state of Iowa, but other jurisdictions as well. It is well worth noting several characteristics. First, the court repeatedly cited the U.S. Supreme Court decision in Lawrence v. Texas,4 in which the Court ruled that homosexuality was a privacy issue and could not be treated as a crime. The Lawrence case has been analyzed in more detail in the Standard Bearer in the past.5 TheLawrence case built on the foundation established in Roe v. Wade, so that the status of the law is now basically that everyone is “able to do what is right in his own eyes,” under the banner of privacy rights, as long as he does not “harm” another person. Because of the Iowa court’s reliance on the U.S. Supreme Court’s decision in Lawrence, we can expect that jurisdictions throughout the country will follow this line of reasoning.
The next item of note is the court’s reasoning that the true reason for denying homosexual marriage is based on religious principles. The county in theVarnum case could not argue its opposition based on religion, because, as the court stated, that would violate Constitutional prohibitions on the establishment of religion. However, our opposition to homosexuality is based squarely on our belief that this sin is forbidden by God’s law as revealed in Scripture. The court drew a distinction between marriage for the purposes of civil law and marriage under religious views. The court noted its constitutional mandate to protect the free exercise of religion, “which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman.”6 However, while the court exempted churches themselves from recognizing a homosexual “marriage,” the ruling leaves open the question of the individual who cannot in good conscience treat a homosexual couple as “married.”
The declining morality of the culture in which we live also played into this case, and will continue to play into similar cases in whatever jurisdiction they are presented. The court in Varnum compared homosexuals to other minority groups who were previously disadvantaged under the law, such as racial minorities. The court noted the progression of society to the point that now, as with the Lawrence v. Texas decision, behavior may be disfavored but not be considered an absolute moral wrong. In the court’s analysis, this was similar to the laws upholding slavery eventually being reversed.
The second way in which the declining moral culture played into this case is in the weakness of the reasons put forward by the county for denying homosexual marriage. The county basically argued that marriages between a man and woman were needed for stability, for tradition, and for good homes for children. In an age where multiple remarriages and divorces are allowed and where divorced, single-parent homes are common, it is difficult to argue seriously that marriage provides stability. Children are often tossed back and forth and confused, and families are broken up and rearranged. Our society has denigrated marriage to a civil status of convenience, to be broken on a whim. Even many of the same “evangelicals” who oppose homosexual marriage turn a blind eye to the rampant practice of divorce and remarriage. Under these circumstances, it is virtually impossible to reason that heterosexual marriages are the foundation for stable families.
The Varnum case received much attention in the press, with many of the usual cries against judicial activism. While pronouncements from a state supreme court do tend to garner attention, believers will do well to pay close attention also to the more subtle legislative efforts to advance the same agenda. These provisions may pass as amendments to other bills, or seemingly innocuous bills that are little noticed. Let us look at an example of such a bill that recently passed in Iowa.
In 2007, the Iowa legislature passed an “anti-bullying bill,” which required all accredited, nonpublic schools to adopt a policy that declared harassment and bullying to be against school policy.7 This sounds like an admirable goal that we could support, since we certainly do not believe bullying is a permissible activity for the child of God. However, just prior to its passage, an amendment was added to the bill that included sexual orientation and gender identity as specific traits for which bullying was prohibited. This inclusion caused some public reaction, but not enough public outcry to defeat the bill. After all, even if homosexuality is wrong, isn’t it still wrong to “bully” someone on that basis?
The problem with the legislation is the way it interprets bullying or harassment. The definition of bullying and harassment as stated in the law includes:
Any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of the following conditions:
(1) Places the student in reasonable fear of harm to the student’s person or property.
(2) Has a substantially detrimental effect on the student’s physical or mental health.
(3) Has the effect of substantially interfering with a student’s academic performance.
(4) Has the effect of substantially interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school.
With this definition, one can imagine a scenario under which a teacher in a covenant school teaches against the sin of homosexuality. The claim could be made that such teaching is detrimental to the mental health of a student who feels he has a different sexual orientation, or that it interferes with his academic performance. The student could further claim that he does not feel welcome to participate in the school. Or perhaps the school board expels the student or suspends him from extracurricular activities because of his sexual orientation. This would certainly interfere with his ability to participate in the services, activities, or privileges provided by the school. Under either scenario, the school would be in violation of its own policy.
Our schools may be able to avoid this result, at least for the present, by relying on the free exercise clause of the Constitution. However, at some point, the courts will have to decide where the lines will be drawn when the freedom of religion clashes with the “privacy rights” of those who practice homosexuality or other sins we condemn. The court in Varnumnoted this statute in finding that homosexuals are a class entitled to some measure of protection.8
Finally, the struggle over the protection afforded to homosexuals is not limited to the state level. For instance, Congress is currently considering legislation to add crimes based on the victim’s sexual orientation and gender identification to the classifications of “hate crimes.”9 Some have expressed fear that if this bill is passed, it could be used to restrain religious groups from voicing opposition to homosexuality.10 However, even if the law is not directly used to protect homosexuality, it is again another step towards recognizing those who engage in this sin as a protected class. The establishment of this protected classification in this and other laws could be used, just as in the Iowa case, as a springboard to limiting discrimination of any kind against homosexuals as a group.
In conclusion, as the views of the world around us regarding what is morally acceptable change, so do the laws that affect our daily lives. Behaviors once considered morally reprehensible are accepted, and the foundations for God-ordained institutions such as marriage crumble. One can easily see the day fast approaching when our condemnation of sin will subject us to prosecution as “intolerant bigots.”
1 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).
2 Jeff Eckhoff and Grant Schulte, “Unanimous Ruling: Iowa marriage no longer limited to one man, one woman,” Des Moines Register, April 3, 2009.
3 Iowa Code section 595.2(1) (2009).
4 Lawrence v. Texas, 539 U.S. 558 (2003).
5 Brian K. Van Engen, “Recent Legal Developments in the Battle over Homosexuality,” Standard Bearer, Jan. 1, 2005.
6 Varnum v. Brien, 763 N.W.2d 862, 905 (Iowa 2009).
7 Iowa Code section 280.28 (2007).
8 Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009).
9 Local Law Enforcement Hate Crimes Prevention Act of 2009, H.R. 1913, 111th Cong., 1st Sess. (2009).
10 David Stout, “House Votes to Expand Hate Crime Protection,” New York Times, May 4, 2007.